Webber v. Foxborough Co-operative Bank

Knowlton, C. J. On June 17,1900, the plaintiff brought a suit against the defendant Rogers to recover a debt, and attached her real estate, which was then subject to a mortgage to the Foxborough Co-operative Bank, another of the defendants. On August 1, 1900, the defendant Rogers conveyed the equity of redemption to the defendant Bird, by a deed, which, according to the allegations of the bill, was fraudulent as against her creditors. On December 6, 1901, the bank foreclosed its mortgage by a sale of the land, under the power, and received $1,030 more than enough to pay the mortgage debt and the expenses [135] of foreclosure. On December 6,1902, the plaintiff recovered a judgment against the defendant Rogers for $311.12. The plaintiff failed to take out execution until January 16, 1903, forty-six days after the judgment, and thereby lost his lien upon the real estate by force of the attachment, and his right to recover the proceeds in equity, in accordance with the rule stated in Wiggin v. Heywood, 118 Mass. 514, and Western Union Telegraph Co. v. Caldwell, 141 Mass. 489, 492. On April 14,1903, he filed this bill, under the R. L. c. 159, § 3, cl. 8, upon an independent ground, namely, to enforce the right which every creditor of the defendant Rogers had to proceed against property conveyed by her in fraud of creditors. This right is open to creditors alike at law and in equity, and it is entirely independent of any other proceedings that may have been taken previously for the collection of the debt. If the plaintiff was neglectful in taking out execution and commencing proceedings for the enforcement of his lien under the attachment, he thereby lost his right in that proceeding, but it did not affect his right to begin a new suit of a different kind, such as any other creditor might bring. The particulars of the fraud and the special purpose that induced it, and the intelligence or lack of intelligence of the parties in their method of accomplishing it, are immaterial upon these demurrers. The bill sufficiently avers that the conveyance was fraudulent as against the creditors of the defendant Rogers, and that the defendant Bird, who received the conveyance, participated in the fraud. Decree reversed; demurrers overruled.